Riley v. Brusendorff
| Citation | 115 N.E. 311,226 Mass. 310 |
| Parties | RILEY v. BRUSENDORFF. |
| Decision Date | 06 March 1917 |
| Court | United States State Supreme Judicial Court of Massachusetts |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Suffolk County; John A. Aiken, Judge.
Action by John J. Riley against Victor Brusendorff and others. Judgment for plaintiff, and defendants except. Exceptions overruled.
Robt. Gallagher and M. L. Marcus, both of Boston, for plaintiff.
J. M. Browne and J. T. Maguire, both of Boston, for defendants.
[1] It is not necessary to decide whether there was an exception saved to the denial of the motion to dismiss. That motion related solely to a late entry of the writ. Before that motion was heard a general appearance had been entered for the defendant by a member of the bar. That cured whatever defect there was, if any, in the entry. A general appearance waives formal defects as to the getting of the defendant before the court. Henry v. Sweeney, 216 Mass. 112, 103 N. E. 85, and cases there collected; Hazard v. Wason, 152 Mass. 268, 270, 25 N. E. 465;Hyde Park v. Wiggin, 157 Mass. 97, 31 N. E. 693. The authority of the attorney in this respect was not disputed and is not now open to question. Norwood v. Dodge, 215 Mass. 351, 102 N. E. 412.
The case was tried by a judge without a jury. The exceptions state that:
On this record it does not appear that any exception was saved to this refusal to rule. There is a plain distinction between taking an exception and filing a bill of exceptions. The exception must be saved according to common practice in a case tried before a judge and decided in the absence of counsel, within a reasonable time after the ruling is made. Now under Common Law Rule 46 of the Superior Court, which was in effect when this trial took place, having been established as of the first Monday of January, 1916, written statement of exceptions must be filed in the clerk's office within three days after receipt of notice from the clerk of the order, ruling or decision to which exception is taken. The filing of the bill, if no exception had been taken before and that was the only taking of the exception, was not a taking of the exception within a reasonable time or within three days after the ruling, even though the bill of exceptions was filed within the legal time, provided an exception had been taken seasonably. Graves v. Hicks, 194 Mass. 524, 80 N. E. 605;Hurley v. Boston Elev. Ry., 213 Mass. 192, 99 N. E. 1056. The bill of exceptions has been allowed unqualifiedly by the presiding judge including the refusal to give the ruling. The allowance of a paper in the form of exceptions cannot give life to an exception which has not been taken. Herrick v. Waitt, 224, Mass. 417, 113 N. E. 205. It would seem that upon the face of the bill of exceptions it ought to have been disallowed so far as relates to this exception because no exception was taken within the time allowed by the...
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